Citation Nr: 0533173
Decision Date: 12/08/05 Archive Date: 12/30/05
DOCKET NO. 03-25 166A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for cognitive
dysfunction, to include as secondary to high fevers from
chicken pox.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1969 to March
1971.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which reopened the veteran's claim
for service connection for cognitive dysfunction and denied
it on the merits. The veteran appealed that decision to BVA,
and the case was referred to the Board for appellate review.
The Board observes that additional evidence has been
received, which was not previously considered by the RO.
Specifically, the veteran submitted three lay statements
after the January 2004 Supplemental Statement of the Case had
been issued. However, the veteran later submitted a waiver
of the RO's initial consideration of the evidence in August
2004. Therefore, the Board will consider this newly obtained
evidence and proceed with a decision
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal.
2. An unappealed rating decision dated in August 1999 denied
service connection for residuals of chicken pox, to include
dyslexia, dementia, and memory loss.
3. The evidence received since the August 1999 rating
decision, by itself or in conjunction with previously
considered evidence, is so significant that it must be
considered to fairly decide the merits of the claim.
4. The veteran has not been shown to have cognitive
dysfunction that is causally or etiologically related to his
military service.
CONCLUSIONS OF LAW
1. The August 1999 rating decision, which denied entitlement
to service connection for residuals of chicken pox, to
include dyslexia, dementia, and memory loss, is final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2005).
2. The evidence received subsequent to the August 1999
rating decision is new and material, and the claim for
service connection for cognitive dysfunction is reopened.
38 U.S.C.A. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West
2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 20.1105 (2005).
3. Cognitive dysfunction was not incurred in active service.
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) emphasized
VA's obligation to notify claimants what information or
evidence is needed in order for a claim to be substantiated,
and it affirmed VA's duty to assist claimants by making
reasonable efforts to get the evidence needed. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A and 5107 (West 2002). In this
case, the RO had a duty to notify the veteran of what
information or evidence was needed in order reopen a claim
for service connection for cognitive dysfunction. VCAA
specifically provided that nothing in amended section 5103A,
pertaining to the duty to assist claimants, shall be
construed to require VA to reopen a claim that has been
disallowed except when new and material evidence is presented
or secured. 38 U.S.C.A. § 5103A(f). In the decision below,
the Board has reopened the appellant's claim for service
connection for cognitive dysfunction, and therefore,
regardless of whether the requirements of the VCAA have been
met in this case, no harm or prejudice to the veteran has
resulted. Therefore, with respect to reopening the veteran's
claim, the Board concludes that the provisions of the VCAA
and the current laws and regulations have been complied with,
and a defect, if any, in providing notice and assistance to
the veteran was at worst harmless error in that it did not
affect the essential fairness of the adjudication. Mayfield
v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v.
Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown,
4 Vet. App. 384 (1993); VAOPGCPREC 16-92.
With respect to the merits of the veteran's claim for service
connection for cognitive dysfunction, the Board finds that
the provisions of the VCAA have been satisfied. A VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). In this case, the RO did not provide the veteran
with notice of the VCAA before the initial adjudication in
this case. However, the RO did provide the veteran with a
letter in August 2003, which meets the notification
requirements of the VCAA, prior to readjudicating his claim
in a statement of the case (SOC) and supplemental statements
of the case (SSOC). Therefore, the Board finds that any
defect with respect to the timing of the VCAA notice
requirement was harmless error.
In this regard, the Board notes that, while notice provided
to the veteran was not given prior to the first AOJ
adjudication of the claim, notice was provided by the AOJ
prior to the transfer and certification of the veteran's case
to the Board, and the content of the notice fully complied
with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b). After the notice was provided, the claim for
service connection for cognitive dysfunction was
readjudicated in a SOC and SSOCs provided to the appellant.
The claimant has been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notices, and he has taken full advantage of
these opportunities, submitting evidence and numerous pages
of argument over the years in support of his claim. Viewed
in context, the furnishing of the VCAA notice after the
decision that led to the appeal did not compromise "the
essential fairness of the [adjudication]." Mayfield v.
Nicholson, 19 Vet. App. 103, 115 (2005). The veteran has had
a "meaningful opportunity to participate effectively" in
the processing of his claim. Id., at 120-21. Therefore,
with respect to the timing requirement for the VCAA notice,
the Board concludes that to decide this appeal would not be
prejudicial to the claimant.
Moreover, the requirements with respect to the content of the
VCAA notice were met in this case. VCAA notice consistent
with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
This "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
In this case, the RO informed the veteran in the August 2003
VCAA letter about the information and evidence that is
necessary to substantiate the claim for service connection
for cognitive dysfunction. Specifically, the letter stated
that the evidence must show that the veteran had an injury in
military service or a disease that began in, or was made
worse during military service, or that there was an event in
service that caused injury or disease; that he has a current
physical or mental disability; and, that there is a
relationship between his current disability and an injury,
disease, or event in military service.
In addition, the RO notified the appellant in the August 2003
letter about the information and evidence that VA will seek
to provide. In particular, the letter indicated that
reasonable efforts would be made to help him obtain evidence
necessary to support his claim and that VA was requesting all
records held by Federal agencies, including service medical
records, military records, and VA medical records. The
veteran was also informed that a medical examination would be
provided or that a medical opinion would be obtained if it
was determined that such evidence was necessary to make a
decision on his claim.
The RO also informed the appellant about the information and
evidence he was expected to provide. Specifically, the
August 2003 letter notified the veteran that he must provide
enough information about his records so that they could be
requested from the agency or person that has them. The
letter also requested that he complete and return the
enclosed VA Form 21-4142, Authorization and Consent to
Release Information to the Department of Veterans Affairs.
In addition, the August 2003 letter informed the veteran that
it was his responsibility to ensure that VA received all of
the requested records that are not in the possession of a
Federal department or agency.
Although the VCAA notice letter(s) that were provided to the
appellant did not specifically contain the "fourth
element," the Board finds that the appellant was otherwise
fully notified of the need to give to VA any evidence
pertaining to her claim. In this regard, the RO has informed
the appellant in the rating decisions, statements of the case
(SOC), and Supplemental Statements (SSOC) of the reasons for
the denial of his claim and, in so doing, informed him of the
evidence that was needed to substantiate that claim.
All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). As noted above,
because each of the four content requirements of a VCAA
notice has been fully satisfied in this case, any error in
not providing a single notice to the appellant covering all
content requirements is harmless error.
In addition, the duty to assist the veteran has also been
satisfied in this case. All available service medical
records as well as VA and private medical records pertinent
to the years after service are in the claims file and were
reviewed by both the RO and the Board in connection with the
veteran's claim. In addition, the veteran was provided VA
examinations in January 2001 and March 2001. VA has also
assisted the veteran and his representative throughout the
course of this appeal by providing them with a SOC and SSOCs,
which informed them of the laws and regulations relevant to
the veteran's claim. For these reasons, the Board concludes
that VA has fulfilled the duty to assist the veteran in this
case.
Background and Evidence
Service records show that the veteran had active service from
March 1969 to March 1971. He was awarded the National
Defense Service Medal, Vietnam Service Medal with one star,
Combat Action Ribbon, and the Vietnam Campaign Medal.
Service medical records indicate that the veteran was
provided a pre-induction examination in January 1969 during
which no pertinent clinical abnormalities were noted, and he
denied having a medical history of head injury or loss of
memory or amnesia. Similar results were reported at the time
of a March 1969 health replacement record. The veteran was
later seen in March 1970 with complaints of fever and malaise
that had an onset three days earlier. It was noted that his
skin broke out in a generalized pruritic papulas eruption,
and he had a sore throat with some cough. His past medical
history was noncontributory. A physical examination found
his temperature to be 103.4 degrees. He was acutely ill, and
there was a diffuse papulo-vesicular and early pustular rash
scattered over his entire body sparing his palms and soles.
The rash involved the scalp and trunk more than the
extremities. There were also vesicles on the soft pallet and
tonsillar pillars. The remainder of the physical examination
was within normal limits. The veteran was hospitalized with
a clinical picture that was characteristic of varicella. He
was treated with supportive measures, and his condition
gradually improved. Following eight days of hospitalization,
his skin lesions were practically healed, and he was
considered noncontagious. He was discharged to duty. The
veteran was provided examinations approximately one week
later and again in September 1970 and March 1971, which did
find any neurological abnormalities.
Private medical records dated in September 1997 document the
veteran as having been seen for a neuropsychological
evaluation. It was noted that that he had reportedly
sustained a work-related head injury in July 1994 when he was
hit in the head by a falling load of concrete and mud. The
veteran complained of chronic neck pain, numbness and
tingling, and significant headaches since that injury.
Although he had reached maximum medical improvement in March
1996, it appeared that he had never been evaluated regarding
the impact of the head injury on the functioning of his
brain. The veteran denied ever experiencing a significant
head injury prior to the July 1994 accident, and he did not
have a family history of epilepsy. He did report
experiencing a very high fever over a number of days during
his military service, and he claimed that he had suffered
brain damage as a result of the fever. Following a clinical
interview, behavioral observations, and tests, the veteran
was diagnosed with dementia not otherwise specified and
depressive disorder not otherwise specified as well as with a
closed head injury and chronic pain syndrome. The examiner
commented that the veteran's mild neuropsychological
impairment was likely related in part to the head injury he
suffered in the industrial accident, but also possibly to
brain damage he suffered many years ago while in the service
as the result of prolonged high fevers. However, he stated
that it was not possible to accurately determine how much of
the veteran's current cognitive deficit was accounted for by
his illness in service versus his subsequent closed head
injury.
The veteran was provided a VA examination in July 1998 at
which time he was diagnosed with an adjustment disorder that
was secondary to his apparent physical problems, which
included spinal and skin problems as well as reported visual
and hearing problems.
VA medical records dated from March 1999 to March 2000
indicate that the veteran was seen in March 1999 at which
time a physical examination revealed his memory to be slow.
The treating physician listed his impression as brain damage
secondary to high fever.
VA medical records dated from March 1999 to June 2000
document the veteran's treatment for various disorders,
including memory loss. The veteran had a follow-up
appointment in April 1999 for memory lapses. It was noted
that he had been seen by neurology in February 1999 and that
dementia labs were within normal limits. An examination did
not show any significant change, but he continued to have
attentional and memory problems. The neurologic examination
was otherwise within normal limits. The veteran was assessed
as having possible dementia that was possibly related to a
history of head trauma. He was also diagnosed with episodic
loss of consciousness and memory lapses, but it was unclear
as to whether these spells were seizures or transient
ischemic attacks. The veteran later sought treatment in
August 1999 with complaints of memory loss and right arm pain
for 30 years. It was noted that he had a significant history
of varicella zoster virus encephalitis while in Vietnam and
resultant behavioral and memory problems. Following an
examination, the psychologist indicated that the results of
the screening were consistent with aftermath of encephalitis
(mesial temporal dysfunction), but the level on the formal
neuropsychological assessment was inconsistent with better
daily real world function. It was noted that evaluation
anxiety, general anxiety, or other response factors may
account for that discrepancy.
Private medical records dated in March 2000 indicate that the
veteran was seen for a neurological evaluation in September
1999 with complaints of memory problems and right arm pain.
It was noted that he was hospitalized for nine days in March
1970 for varicella, which was accompanied by fever and
malaise. The veteran had also sustained a head injury at
work in 1994. Following a review of the veteran's medical
history and evaluation, the treating physician commented that
he was unable to determine whether the veteran's complaints
were directly related to his military service with any degree
of certainty. In this regard, he noted that there were
discrepancies amongst the veteran's statements and the
medical records.
The veteran was afforded a VA mental examination in January
2001 during which his claims file was reviewed. Following a
mental status examination, the veteran was assessed as having
a depressive disorder not otherwise specified and dementia
not otherwise specified. The examiner commented that it was
not possible to indicate that etiology of the veteran's
cognitive dysfunction with absolute certainty, but stated
that it was his opinion that both his head injury and the
previous encephalitis were likely contributing factors.
The veteran was also provided a VA neurological examination
in January 2001 during which he reported having difficulty
with his memory and functioning capacity following his
hospitalization for chickenpox in service. Following a
review of the veteran's reported history and a physical
examination, the examiner indicated that there was no
evidence by neurologic testing of any cognitive decline. He
did note that the veteran had some mild attention problems,
which were more consistent with poorly treated depression.
The examiner also commented that it was possible that the
veteran had varicella encephalitis during service, but stated
that one would suspect that he would not be able to return to
his term of service and participate in military activities
following the episode. Nevertheless, the examiner indicated
that he saw no evidence on examination of residuals from the
infection.
The veteran was afforded a VA neurological examination in
March 2001 during which his claims file was reviewed. With
respect to the veteran's complaints of a memory disorder, the
examiner did not find any evidence of abnormality on
examination other than some mild attentional problems, which
were not consistent with any form of dementia or amnestic
state. As such, he stated that there was no evidence of
encephalitis cause of any chronic static cognitive deficit,
which could be attributed to a prior episode of encephalitis.
In his September 2003 hearing testimony before a decision
review officer at the RO, the veteran indicated that he
contracted chickenpox during his military service and had a
temperature as high as 109 degrees before cooling down to 103
degrees. He claimed that he was not functioning properly
following the episode. The veteran also indicated that he
first sought treatment in 1984, but was told that nothing was
wrong with him.
The veteran submitted information obtained from the Internet
in September 2003 in which chickenpox and its possible
complications were discussed.
A private physician submitted a statement in October 2003 in
which he stated that references indicate that long lasting
neuropsychological residue was common in patients who
suffered acute viral encephalitis. He also noted that
abnormalities included impaired new learning of both verbal
and visual material, headaches, memory difficulties, and
behavior alterations.
A pastor submitted a lay statement in November 2003 in which
he indicated that he had known the veteran his entire life
and that he noticed that he became a different person
following his military service. In this regard, he stated
that the veteran woke everyone in the neighborhood and
stopped caring for himself.
The veteran's sister submitted a lay statement in November
2003 in which she noted that he had had health problems since
being discharged from service.
A friend of the veteran wrote a letter on his behalf in June
2004 in which he noted that he had known the veteran since
birth and observed that he was emotionally and physically
damaged from his military service.
Law and Analysis
The veteran contends that he is entitled to service
connection for cognitive dysfunction. More specifically, he
claims that his current cognitive dysfunction is related to
the high fevers that he experienced with his chickenpox
during his military service.
Applicable law provides that service connection may be
established for disability resulting from personal injury
suffered or disease contracted in line of duty in the active
military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.
That an injury or disease occurred in service is not enough;
there must be chronic disability resulting from that injury
or disease. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any injury or disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease or injury was incurred
in service. 38 C.F.R. § 3.303(d).
The Board observes that the veteran's claim for service
connection for cognitive dysfunction was previously
considered and denied by the RO in a rating decision dated in
August 1999. The veteran was notified of that decision and
of his appellate rights. In general, rating decisions that
are not timely appealed are final. See 38 U.S.C.A. § 7105;
38 C.F.R. § 20.1103.
In October 2000, the veteran essentially requested that his
claim for service connection for cognitive dysfunction be
reopened. The rating decision now on appeal appears to have
reopened the veteran's claim for service connection for
cognitive dysfunction and adjudicated that claim on a de novo
basis. As will be explained below, the Board believes that
the RO's adjudication regarding reopening the veteran's claim
for service connection for cognitive dysfunction is
ultimately correct. Nevertheless, the requirement of
submitting new and material evidence is a material legal
jurisdictional issue that the Board is required to address on
appeal, despite the RO's actions. See Barnett v. Brown, 83
F.3d 1380, 1383-1384 (Fed. Cir. 1996) (Statutory tribunal
must ensure that it has jurisdiction over each case before
adjudicating the merits, potential jurisdictional defect may
be raised by court of tribunal, sua sponte or by any party,
at any stage in the proceedings, once apparent, must be
adjudicated). Thus, the Board has recharacterized the issue
on appeal as whether the veteran has submitted new and
material evidence to reopen the previously denied claim for
service connection for cognitive dysfunction.
In order to reopen a claim which has been denied by a final
decision, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. New and material evidence
means evidence not previously submitted to agency
decisionmakers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a); see
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363. To reopen a previously disallowed
claim, new and material evidence must be presented or secured
since the last final disallowance of the claim on any basis,
including on the basis that there was no new and material
evidence to reopen the claim since a prior final
disallowance. See Evans v. Brown, 9 Vet. App. 273, 285
(1996). For purposes of reopening a claim, the credibility
of newly submitted evidence is generally presumed. See
Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in
determining whether evidence is new and material,
"credibility" of newly presented evidence is to be presumed
unless evidence is inherently incredible or beyond competence
of witness).
As noted above, an August 1999 rating decision previously
considered and denied the veteran's claim for service
connection for residuals of chicken pox, to include dyslexia,
dementia, and memory loss. In that decision, the RO noted
that a May 1984 rating decision had already denied the claim
because the veteran's chickenpox in service was acute and
transitory and he did not have any residual disability. The
RO reviewed the veteran's claims file again and determined
that new and material evidence had not been submitted to
reopen the claim. In this regard, it was noted that the
veteran's separation examination was negative for the claimed
conditions, and the July 1998 VA examiner diagnosed him with
adjustment disorder that was attributed to a nonservice-
connected cervical spine disorder. The RO also noted that
the veteran had been involved in a work-related accident in
which he was struck on the head and since experienced neck
pain, numbness and tingling, and significant headaches.
The evidence associated with the claims file subsequent to
the August 1999 rating decision includes VA medical records,
private medical records, January 2001 and March 2001 VA
examination reports, lay statements, September 2003 hearing
testimony, and the veteran's own assertions.
The Board has thoroughly reviewed the evidence associated
with the claims file subsequent to the August 1999 rating
decision and finds that this evidence constitutes new and
material evidence which is sufficient to reopen the
previously denied claim for service connection for cognitive
dysfunction. This evidence is new in that it was not
previously of record. The Board also finds the January 2001
and March 2001 VA examination reports and the October 2003
private medical opinion to be material because they are so
significant that they must be considered in order to fairly
decide the merits of the claim. In this regard, the Board
notes that this evidence has provided opinions as to the
etiology of the veteran's current cognitive dysfunction.
Therefore, the Board finds that new and material evidence has
been presented to reopen the veteran's previously denied
claim for service connection for cognitive dysfunction.
The Board finds that there is no prejudice to the appellant
by the Board proceeding to address the merits of this claim
in this decision. As discussed above, VA has already met all
obligations to the appellant under the Veterans Claims
Assistance
Act. Moreover, the appellant has been offered the
opportunity to submit evidence and argument on the merits of
the issue on appeal, and has done so. See Bernard v. Brown, 4
Vet. App. 384, 392-94 (1993).
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that
service connection for cognitive dysfunction is not
warranted. The Board does acknowledge that the veteran was
hospitalized and treated for chickenpox during his military
service. However, his service medical records do not
document any complaints, treatment, or diagnosis of any
neurological disorder, and the veteran did not seek treatment
for many decades following his separation from service. In
fact, the veteran testified at his September 2003 hearing
testimony that he did not seek treatment until 1984 at which
time he was told that there was nothing wrong with him.
Therefore, the Board finds that the veteran's cognitive
dysfunction did not manifest in service or within close
proximity thereto.
In addition to the lack of evidence establishing that
cognitive dysfunction manifested during service or within
close proximity thereto, the more probative evidence does not
show that any current cognitive dysfunction is related to any
disease or injury that occurred during active service. The
record shows that there were no complaints, treatment, or
diagnosis of cognitive dysfunction for many decades following
the veteran's separation from service.
The Board does acknowledge the private medical records dated
in September 1997 in which the examiner commented that the
veteran's mild neuropsychological impairment was likely
related in part to the head injury he suffered in the
industrial accident, but that it was also possibly due to
brain damage he suffered many years ago while in the service
as the result of prolonged high fevers. However, the
examiner further stated that it was not possible to
accurately determine how much of the veteran's current
cognitive deficit was accounted for by his illness in the
service versus his subsequent closed head injury.
Additionally, the Board observes the January 2001 VA mental
examiner's opinion that the veteran's head injury and
previous encephalitis were both likely contributing factors,
yet he also stated that it was not possible to indicate that
etiology of the veteran's cognitive dysfunction with absolute
certainty. The Board further observes the October 2003
private medical opinion stating that references indicate that
long lasting neuropsychological residue was common in
patients who suffered acute viral encephalitis. However, the
Board notes that this opinion does not make any reference to
the veteran, nor does it specifically address the etiology of
the veteran's particular disorder.
The Board also acknowledges the information from the Internet
submitted by the veteran in September 2003 to support the
contention that he currently has cognitive dysfunction that
is related to his chickenpox in service. However, the Board
notes that this evidence is general in nature and no examiner
has specifically related the information contained therein to
the veteran. See Sacks v. West, 11 Vet. App. 314, 317 (1998)
("This is not to say that medical article and treatise
evidence are irrelevant or unimportant; they can provide
important support when combined with an opinion of a medical
professional."). Thus, the Board finds that it is of little
probative value in this case.
Significantly, the January 2001 VA neurological examiner
indicated that there was no evidence by neurologic testing of
any cognitive decline and that the veteran's mild attention
problems were more consistent with poorly treated depression.
The examiner also commented that that one would suspect that
the veteran would not be able to return to his term of
service and participate in military activities if he had had
an episode of encephalitis. He further stated that he saw no
evidence on examination of residuals from the infection. In
addition, the March 2001 VA examiner did not find any
evidence of abnormality on examination other than some mild
attentional problems, which were not consistent with any form
of dementia or amnestic state. As such, he stated that there
was no evidence of encephalitis cause of any chronic static
cognitive deficit, which could be attributed to a prior
episode of encephalitis. The Board finds this evidence more
consistent with the service medical records and the long gap
after service without any evidence of residual cognitive
deficit and thus assigns more probative value to this medical
evidence than to the reports depicting the illness in service
as a possible contributing factor to a current mild
neuropsychological impairment.
In this regard, the Board notes that, although credibility is
often defined as determined by the demeanor of a witness,
documents may also be credible evidence. Caluza v. Brown, 7
Vet. App. 498, 511 (1995), citing Fasolino Foods v. Banca
Nazionale Del Lavoro, 761 F. Supp. 1010, 1014 (S.D.N.Y.
1991); In Re National Student Marketing Litigation, 598 F.
Supp. 575, 579 (D.D.C. 1984). Credibility has been termed as
"the quality or power of inspiring belief." WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY (1966). It apprehends the over-all
evaluation of testimony in the light of its rationality or
internal consistency and the manner in which it hangs
together with other evidence." Indiana Metal Prods. v.
NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971), quoting Carbo v.
United States, 314 F.2d 718, 749 (9th Cir. 1963). In this
way, the Board finds the March 2001 medical opinion and the
observations noted in the preceding paragraph by the January
2001 VA neurological examiner to hang together in a
consistent manner with the historical record in this case
including the service medical records and the long gap after
service without any evidence of residual cognitive deficit.
Therefore, the Board finds this evidence credible and
persuasive and concludes that the preponderance of the
evidence is against the veteran's claim for service
connection for cognitive dysfunction.
Because the preponderance of the evidence is against the
veteran's claim, the benefit of the doubt provision does not
apply. Accordingly, the Board concludes that service
connection for a cognitive dysfunction is not warranted.
Although the Board does not doubt the veteran's sincere
belief that he currently has cognitive dysfunction related to
service, the veteran is not a medical professional competent
to render an opinion on matters of medical etiology or
diagnosis and absent a professional medical opinion linking a
current disorder to service, service connection cannot be
granted. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for a cognitive dysfunction
is reopened, and to this extent only, the appeal is granted.
Service connection for cognitive dysfunction is denied.
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs